Campaign ’04: The Florida of 2004?

HERE’S THE NIGHTMARE scenario: it’s Nov. 3, the morning after the presidential election, and there is no winner. In a case of déjà vu, the electoral vote is close and in dispute, and neither the Democratic nor Republican candidate will concede defeat. Both dispatch planes stuffed with lawyers to squabble over the results. But this time the jets are heading not to Florida but to Colorado, because the state has awarded five electoral votes to one contender and four to the other.

This story line is not farfetched. When the nation goes to the polls Nov. 2, Coloradans will also vote on Amendment 36. As of today, Colorado, like 47 other states and the District of Columbia, awards electoral votes on a winner-take-all basis. (Nebraska and Maine give two votes to the statewide winner and one to the winner in each congressional district, though in practice neither has ever split its allotment.) Amendment 36, which would take effect immediately, would divvy up Colorado’s electoral votes based on the percentage of votes each candidate wins in the state. If 36 passes, and President George W. Bush’s slight lead in statewide polls holds on election night, the President would win five votes and John Kerry would win four.

Supporters of 36 argue that the proposed system would more accurately represent the will of the people. Presidential elections create the illusion that there are solid Republican and solid Democratic states. But in the 2000 race, in red Colorado, Al Gore won the support of more than 42% of the voters. Bush won 41% in blue California. If every state adopted 36’s rules, those supporters’ votes would count for something. “It could make California and New York worth a Republican effort,” says James Gimpel, an Electoral College expert at the University of Maryland. “Wouldn’t it be nice, if you were a Democrat in Texas, to actually see a Democratic presidential candidate visit?” The reform would also greatly reduce the chance of a candidate winning the popular vote but losing the electoral vote.

When Gore did just that in 2000, many Democrats decided it was time to scrap the Electoral College. But that requires a constitutional amendment, not an easy thing to pass when swing states like the current system, which affords them a disproportionate share of the candidates’ attention. The Constitution gives state legislatures the power to decide how electors are chosen, and since 2000, legislators in 29 states have proposed bills eliminating winner-take-all systems. Not one bill has passed. The party that dominates the statehouse usually has an edge in presidential campaigns and is thus reluctant to share the state’s electoral votes with the weaker party.

A Phoenix foundation called the People’s Choice for President went looking for a state where the rules could be changed by ballot initiative. In Colorado, case law has established that such initiatives are the equivalent of legislative acts. The foundation teamed up with reform-minded Coloradans, who started a campaign called Make Your Vote Count and collected more than 134,000 signatures to put 36 on the ballot. Most of the financial backing has come from J. Jorge Klor de Alva, the former president of the University of Phoenix, a for-profit adult-education school. Klor de Alva, who divides his time between Brazil and California, is now CEO of Apollo International, a University of Phoenix offshoot that runs a similar university in Brazil.

“This initiative is being financed by Californians who want to try it in Colorado instead of their own backyard,” says Katy Atkinson, a Denver political consultant who heads Coloradans Against a Really Stupid Idea. Atkinson and other opponents of 36, including Republican Governor Bill Owens, accuse Democrats of trying to steal votes for Kerry. They also believe future candidates will not bother to campaign in Colorado if they’re only going to win a portion of its nine votes. The amendment, however, has some popular appeal. A Rocky Mountain News poll conducted last month found 47% of respondents supported 36 and 35% were opposed, though many are just starting to pay attention.

If the amendment passes and its implementation costs either candidate the race, legal challenges are virtually inevitable. Richard Collins, professor of constitutional law at the University of Colorado, says previous cases suggest that the U.S. Supreme Court would uphold the initiative as a legitimate means for Colorado to change its system. However, he notes that the losing side might charge that there were irregularities in the procedures leading to the initiative. And, in a pamphlet sent to voters listing the pros and cons of 36, the legislative council of the statehouse noted that if the amendment passes, its retroactive nature “might cause court battles.” After 2000, in this tight race, that may prove quite an understatement. –With reporting by Rita Healy/Denver